Judge Nominee Says Position Was Wrong

JESSE J. HOLLAND

Published 7:00 pm, Monday, March 31, 2003

Associated Press Writer

A California judge who fought to retain Bob Jones University's tax-exempt status when it was racially segregated told a Senate committee considering her promotion to the federal appellate bench on Tuesday that she had been wrong.

"I regret taking the position I did," said California Superior Court Judge Carolyn Kuhl, a former Reagan administration lawyer looking for a seat on the 9th U.S. Circuit Court of Appeals in San Francisco.

Kuhl also told senators she considers the 30-year-old Roe v. Wade decision established law and would not work to overturn it on the appeals court. In 1983, when Kuhl worked for the Justice Department, she urged the Supreme Court to abandon the decision, which legalized abortion in the United States.

"As a circuit court judge, that would never be my job," said Kuhl, 50, a California state judge in Los Angeles.

Kuhl is looking to become the second of President Bush's nominees to be placed on the 9th U.S. Circuit Court of Appeals.

The San Francisco appeals court recently ruled that the use of the Pledge of Allegiance in public schools violates the Constitution. The court, often considered the nation's most liberal appeals court, said use of the words "under God" amounts to a government endorsement of religion.

That decision has been put on hold until the Supreme Court can look at it. The San Francisco court hears federal appeals for Alaska, Hawaii, California, Washington, Oregon, Montana, Idaho, Arizona, Guam, the Northern Marianas and Nevada.

Bob Jones University, a fundamentalist Christian school in Greenville, S.C., first admitted black students after the IRS acted to revoke its tax-exempt status in 1970 on racial discrimination grounds. The 4,200-student school banned interracial dating until two years ago but now is recruiting minorities.

While working at the Justice Department, Kuhl was one of the strongest advocates of not allowing the IRS to revoke Bob Jones' tax-exempt status, Democrats said. She said her intention was to help curtail the power of the IRS. As a government lawyer, however, "I should have been defending the position of the IRS, and I was wrong because nondiscrimination should have been put first," she said Tuesday.

Sen. Dianne Feinstein, D-Calif., asked Kuhl if she could be trusted to follow the law on abortion after former Solicitor General Charles Fried called a Kuhl memo the most aggressive he received urging the government to argue that Roe v. Wade should be reversed.

"As an attorney I think it's appropriate to overturn a Supreme Court precedent when it's in your client's interest," said Kuhl, who has been a judge since 1995.

"As judges, that's not what we do. I know how important it is to you and other women in the country to know that I'm fully committed to following the law. … Understand that I'm fully committed to fully and fairly and properly enforcing a woman's constitutional right to reproductive freedom."

Democrats complained that Kuhl had not been approved by either of California's senators, yet still was getting a hearing from the GOP-controlled Senate Judiciary Committee. Senate Majority Leader Bill Frist, R-Tenn., had to introduce her to the committee, which a nominee's home-state senators normally do.

Sen. Patrick Leahy, D-Vt., said none of former President Clinton's judges moved forward without approval from both home-state senators. But Sen. Jeff Sessions, R-Ala., said single senators shouldn't be allowed to stop nominees for regional courts.

The Senate confirmed former Colorado Solicitor General Timothy Tymkovich for the 10th U.S. Circuit Court of Appeals in Denver. Tymkovich, who was confirmed by a 58-41 vote, is a graduate of Colorado College and the University of Colorado School of Law. He was Colorado's solicitor general from 1991 to 1996.